B-175854(1), SEP 1, 1972

B-175854(1), SEP 1, 1972

BID PROTEST - LATE BID - BURDEN OF PROOF DENIAL OF PROTEST ON BEHALF OF BALLANTINE LABORATORIES, INC., AGAINST REJECTION OF THEIR BID UNDER AN IFB ISSUED BY THE FEDERAL AVIATION ADMINISTRATION FOR THE PROCUREMENT OF OSCILLOSCOPES. A BIDDER WHO ELECTS OTHER THAN REGISTERED OR CERTIFIED MAIL WHEN USING THE POSTAL SERVICE FOR DELIVERY OF HIS BID ASSUMES THE RISK OF LATE DELIVERY. 49 COMP. GEN. 191 (1969). A "CERTIFICATE OF MAILING" IS NOT SUFFICIENT PROOF OF TIMELY MAILING BECAUSE THERE IS NO CORRESPONDING IDENTIFICATION BETWEEN THE MAILED BID ENVELOPE AND THE RECEIPT OR CERTIFICATE ISSUED FOR IT. FURTHER, THE EVIDENCE PRESENTED BY PROTESTANT DOES NOT ESTABLISH "TIMELY RECEIPT" OF THE BID IN VIEW OF THE CONTRARY DOCUMENTARY EVIDENCE. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO GLADSTONE & LOWELL:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF BALLANTINE LABORATORIES, INCORPORATED, AGAINST REJECTION OF ITS BID UNDER INVITATION FOR BIDS NO. WA5M2-7547-B-1, ISSUED BY THE FEDERAL AVIATION ADMINISTRATION.

THE SUBJECT INVITATION WAS ISSUED ON MARCH 1, 1972, FOR THE PROCUREMENT OF OSCILLOSCOPES. OPENING WAS SCHEDULED FOR 2:00 P.M. MARCH 31, 1972, AT WHICH TIME BIDS WERE OPENED. BALLANTINE'S BID WAS REJECTED AS LATE, AS IT REPORTEDLY WAS NOT RECEIVED UNTIL APRIL 1, 1972. AWARD WAS MADE TO ANOTHER FIRM ON JUNE 29, 1972, PRIOR TO RESOLUTION OF THE PROTEST ON THE BASIS OF A DETERMINATION AND FINDINGS PURSUANT TO FEDERAL PROCUREMENT REGULATION 1-2.407-8(B) THAT THE PROCUREMENT WAS URGENT.

IT IS YOUR CONTENTION THAT BALLANTINE'S BID WAS PROPERLY FOR CONSIDERATION UNDER THE TERMS OF PARAGRAPH 8 OF THE INVITATION WHICH PROVIDES, IN PART, THAT LATE BIDS RECEIVED PRIOR TO AWARD ARE FOR CONSIDERATION IF SUBMITTED BY MAIL AND IT IS DETERMINED THAT THE LATE RECEIPT WAS DUE TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION, PROVIDED THAT TIMELY RECEIPT AT SUCH INSTALLATION IS ESTABLISHED BY DOCUMENTARY EVIDENCE. TO ESTABLISH TIMELY RECEIPT AT THE FAA BUILDING, YOU RECITE THE FOLLOWING FACTS: MR. MILTON J. LICHTENSTEIN, VICE PRESIDENT OF BALLANTINE, HAND CARRIED THE BID TO THE BOONTON, NEW JERSEY, POST OFFICE AT ABOUT 3:00 P.M., WEDNESDAY, MARCH 29, 1972, WHERE HE MAILED IT "SPECIAL DELIVERY-AIR MAIL WITH A CERTIFICATE OF MAILING TO PROVE TIME OF MAILING"; THE BID PACKAGE WAS DISPATCHED FROM BOONTON AT 5:30 P.M., MARCH 29, 1972; IT ARRIVED AT THE WASHINGTON, D.C., POST OFFICE AT 1:30 P.M., MARCH 30, 1972; AND ACCORDING TO A WASHINGTON POST OFFICE REPRESENTATIVE, THE BID PACKAGE WOULD HAVE "UNDOUBTEDLY" BEEN DISPATCHED FOR DELIVERY TO THE FAA AT 3:00 P.M., THAT DAY, AND THERE IS NO EVIDENCE OF ANY SPECIAL DELIVERY MAIL HAVING ARRIVED PRIOR THERETO REMAINING AFTER 3:00 P.M., ON MARCH 30, 1972. THEREFORE, YOU CONCLUDE THAT THE BID PACKAGE MUST HAVE ARRIVED AT THE FAA BUILDING SOMETIME THE AFTERNOON OR EVENING OF MARCH 30, 1972, AND WAS TIMELY RECEIVED.

AS EVIDENCE OF MISHANDLING AFTER ARRIVAL AT THE FAA BUILDING, YOU FIRST POINT TO THE TWO ENTRIES ON THE BID PACKAGE ENVELOPE MADE BY FAA PERSONNEL. FIRST, YOU REFER TO THE MACHINE STAMPED DATE-TIME OF "MAR 32, 8:35 A.M. '72, CONTRACTING OFFICER", AND CONTEND THAT THIS IN ITSELF INDICATES MISHANDLING OF SOME NATURE AS ONE ACCUSTOMED TO OPERATING A STAMP MACHINE WOULD NOT BE EXPECTED TO MAKE SUCH A MISTAKE, AND ONCE HAVING MADE IT, FAIL TO CORRECT IT. YOU SPECULATE THAT THE BID PACKAGE PROBABLY ARRIVED IN THE CONTRACTS DIVISION ON SATURDAY, APRIL 1, 1972, NOT A NORMAL WORKING DAY, AND AFTER STAMPING THE MARCH 32 DATE IT WAS DISCOVERED FOR THE FIRST TIME THAT IT HAD NO MACHINE STAMP SHOWING ITS TRUE ARRIVAL TIME AT THE FAA. SINCE A MACHINE STAMP IN THE MAIL ROOM WOULD THEN SHOW A LATER TIME AND DATE, IT WAS RETURNED TO THE MAIL ROOM WHERE THE HAND WRITTEN NOTATION WAS MADE THAT THE PACKAGE WAS RECEIVED ON APRIL 1, 1972, AT 8:30 A.M. IN THIS CONNECTION, YOU POINT OUT THAT THE WORD "RECEIVED" IS MISPELLED, WHICH WOULD BE AN UNLIKELY OCCURRENCE IF WRITTEN BY SOMEONE ACCUSTOMED TO WRITING THE WORD. ALSO, YOU CONTEND THAT IT IS INCONCEIVABLE THAT THE MAIL ROOM DOES NOT HAVE A DATE-TIME STAMP MACHINE. FINALLY, YOU NOTE THAT THERE IS ONLY FIVE MINUTES DIFFERENCE IN THE TWO RECORDED TIMES, AND QUESTION WHETHER THE BID PACKAGE COULD HAVE MADE ITS WAY FROM THE MAIL ROOM TO THE CONTRACTS DIVISION IN SUCH SHORT TIME. FROM THESE CIRCUMSTANCES, YOU THEORIZE THAT THE BID PACKAGE ARRIVED AT THE FAA ON MARCH 30, 1972, AFTER COGNIZANT PERSONNEL HAD LEFT FOR THE DAY, ACCOUNTING FOR THE LACK OF A MACHINE STAMP; AND THAT THE BID PACKAGE DID NOT COME TO THE ATTENTION OF COGNIZANT PERSONNEL THE FOLLOWING DAY (MARCH 31, 1972), EITHER BECAUSE IT WAS NOT HANDLED PROPERLY BY THE PERSON WHO RECEIVED IT THE PREVIOUS AFTERNOON, OR BECAUSE THE STAFF IN THE MAIL ROOM WAS DEPLETED BECAUSE IT WAS GOOD FRIDAY.

IT IS FAA'S POSITION THAT THE DOCUMENTARY EVIDENCE SUPPLIED BY YOU DOES NOT PROVE TIMELY RECEIPT AT THE FAA BUILDING. FURTHERMORE, FAA SAYS THAT ITS INVESTIGATION FAILED TO REVEAL ANY EVIDENCE OF DELAY DUE TO MISHANDLING AT THE FAA BUILDING. IT IS REPORTED THAT THE ONLY EVIDENCE DEVELOPED AS TO WHEN THE BID PACKAGE REACHED THE FAA BUILDING IS THAT WHEN THE CHIEF OF THE MAIL UNIT ARRIVED IN THE MAIL ROOM ON SATURDAY APRIL 1, 1972, HE FOUND THE BID PACKAGE ON THE INCOMING MAIL DESK. SINCE THE BID PACKAGE WAS TOO LARGE TO FIT INTO THE DATE-TIME STAMP MACHINE, ITS TIME OF RECEIPT (APRIL 1, 8:30 A.M.), WAS NOTED ON THE ENVELOPE IN LONG-HAND. BECAUSE BID DOCUMENTS REPORTEDLY RECEIVE PRIORITY TREATMENT, IT WAS IMMEDIATELY TAKEN FROM THE MAIL ROOM ON THE FIRST FLOOR TO THE CONTRACTS DIVISION ON THE FOURTH FLOOR. SINCE THE BID PACKAGE WOULD NOT FIT INTO THE DATE-TIME STAMP MACHINE IN THE CONTRACTS DIVISION, THE TIME OF RECEIPT (MARCH 32, 8:35 A.M.), WAS STAMPED ON A SEPARATE PIECE OF PAPER AND AFFIXED TO THE ENVELOPE.

THE FAA REPORTS THAT ALL INCOMING MAIL IS DELIVERED BY THE POSTAL SERVICE TO THE MAIL ROOM, EXCEPT SPECIAL DELIVERY MAIL RECEIVED AFTER THE CLOSE OF BUSINESS. IT IS REPORTED THAT OCCASIONALLY THIS MAIL WILL BE GIVEN TO A GSA FEDERAL PROTECTION OFFICER WHO WILL EITHER PUT THE MAIL IN THE FAA MAIL ROOM OR ALLOW THE POSTAL EMPLOYEE TO PLACE IT ON THE FLOOR OUTSIDE THE MAIL ROOM. IN THE LATTER SITUATION, IT IS REPORTED, A FEDERAL PROTECTION OFFICER MAKING EVENING ROUNDS WILL OFTEN PLACE THE MAIL IN THE MAIL ROOM. THERE IS NO EVIDENCE THAT THIS IS WHAT OCCURRED IN THIS INSTANCE. HOWEVER, FAA STATES THAT IT IS CLEAR FROM ITS INVESTIGATION THAT THE BID PACKAGE HAD NOT BEEN DELIVERED TO THE MAIL ROOM AS OF 6:00 P.M., MARCH 31, 1972, FOUR HOURS AFTER BID OPENING. FURTHER, IT IS REPORTED THAT THE MAIL ROOM WAS ADEQUATELY STAFFED ON THAT DAY, AS ONLY ONE OF THE 13 MAIL ROOM EMPLOYEES WAS ON LEAVE. ALSO, FAA POINTS OUT THAT WHATEVER THE REASON FOR THE "MARCH 32" DATE STAMP, THIS OCCURRED LONG AFTER BIDS WERE OPENED AND HAS NO BEARING ON THE QUESTION OF MISHANDLING MORE THAN 18 HOURS PRIOR THERETO.

UNDER THE LATE BID PROVISIONS OF THE INVITATION, WHICH ARE AN IMPLEMENTATION OF FPR 1-2.303-3, A LATE MAILED BID RECEIVED BEFORE AWARD MAY BE CONSIDERED ONLY IF (1) IT WAS SENT BY REGISTERED OR CERTIFIED MAIL AND THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS, OR (2) IT WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO REACH THE DESIGNATED OFFICE, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT. WITH REGARD TO EXCEPTION (2) ABOVE, THE REGULATION PROVIDES AS FOLLOWS:

"*** THE ONLY EVIDENCE ACCEPTABLE TO ESTABLISH TIMELY RECEIPT AT THE GOVERNMENT INSTALLATION IS THAT WHICH CAN BE ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT AT SUCH INSTALLATION (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT."

IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT IT IS THE BIDDER'S RESPONSIBILITY TO SEE THAT HIS BID IS MAILED IN TIME TO REACH THE DESIGNATED OFFICE BY THE BID OPENING TIME, AND A BIDDER WHO ELECTS OTHER THAN REGISTERED OR CERTIFIED MAIL WHEN USING THE POSTAL SERVICE FOR DELIVERY OF HIS BID ASSUMES THE RISK OF LATE DELIVERY. 49 COMP. GEN. 191, 195 (1969); B-168107, DECEMBER 18, 1969, AND CASES CITED. BALLANTINE'S BID WAS NOT SENT EITHER BY REGISTERED OR BY CERTIFIED MAIL WHICH WOULD HAVE ESTABLISHED THE TIME AND DATE OF RECEIPT AT THE INSTALLATION AND THE NAME OF THE RECIPIENT OF THE BID. INSTEAD, IT WAS POSTED UNDER A "CERTIFICATE OF MAILING" WHICH WE HAVE PREVIOUSLY CONCLUDED IS NOT SUFFICIENT PROOF OF TIMELY MAILING BECAUSE, UNLIKE CERTIFIED OR REGISTERED MAIL, THERE IS NO CORRESPONDING IDENTIFICATION BETWEEN THE MAILED BID ENVELOPE AND THE RECEIPT OR CERTIFICATE ISSUED FOR IT. SEE 42 COMP. GEN. 255 (1962) AND 46 COMP. GEN. 42 (1966). ALSO, WE HAVE CONSISTENTLY REFUSED TO ACCEPT EVIDENCE ON THE BID ENVELOPE IN THE FORM OF POSTMARKS AS SUFFICIENT EVIDENCE OF TIMELY MAILING. SEE B-175483, MAY 24, 1972, AND B- 153190, MARCH 31, 1964.

THE REMAINING QUESTION PRESENTED IS WHETHER THE LATE RECEIPT IN THE CONTRACTS DIVISION CAN BE SAID TO BE DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION. IN THIS REGARD, THE REGULATION STATES THAT "TIMELY RECEIPT" SHALL BE ESTABLISHED BY "EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY), OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT AT SUCH INSTALLATION (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT." THE DOCUMENTARY EVIDENCE AND THE DATE-TIME STAMP AT THE INSTALLATION ESTABLISH THE TIME OF RECEIPT AS 8:30 A.M., AND 8:35 A.M., RESPECTIVELY, APRIL 1, 1972. WHILE THE LETTER YOU HAVE FURNISHED FROM THE WASHINGTON, D.C., POST OFFICE DOCUMENTS RECEIPT OF THE BID PACKAGE THERE AT 1:30 P.M., MARCH 30, 1972, IT ONLY CONCLUDES THAT "IT IS ASSUMED THAT THE PIECE WAS DELIVERED" ON THE 3:00 P.M. RUN ON MARCH 30, 1972. ALTHOUGH THIS TENDS TO INDICATE THE BID PACKAGE WAS DELIVERED ON THAT DATE, IT DOES NOT IN OUR OPINION ESTABLISH "TIMELY RECEIPT" IN VIEW OF THE CONTRARY DOCUMENTARY EVIDENCE OF RECEIPT AT THE INSTALLATION. IN THESE CIRCUMSTANCES, WE MUST CONCLUDE THAT THE CONTRACTING OFFICER'S REJECTION OF BALLANTINE'S BID AS LATE WAS REASONABLE UNDER THE APPLICABLE REGULATION AND, THEREFORE, THERE IS NO LEGAL BASIS FOR OUR OFFICE TO OBJECT TO THE AWARD AS MADE.

WITH REGARD TO THE MATTERS DISCUSSED IN YOUR LETTER OF JULY 10, 1972, WE ENCLOSE A COPY OF OUR LETTER OF TODAY TO THE SECRETARY OF TRANSPORTATION.